2020 P Cr. L J 1688
[Balochistan]
Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ
HABIB -UR-REHMAN ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 170 of 2019, decided on 23rd July, 2019.
Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4(2) ---
Possession of narcotics ---Appreciation of evidence ---Recovery proceedings ---Sample
analysis, delay in ---Effect ---Accused was arrested while sitting in rear s eat of Vehicle from
which 10 sacks of raw Charas weighing 250 kilograms was allegedly recovered but driver
had escaped ---Recovery proceedings were not carried out at spot rather all proceedings were
carried out in Levies station ---Non -sealing of samples so on after its recovery at spot had
created serious doubt in case of prosecution and no implicit reliance could be placed on chemical examiner's report hence case of prosecution was highly doubtful ---Incharge of
vehicle was always considered to be driver of vehicle and he was held responsible for
recovery of any sort of article from said vehicle ---Whatever articles lie in such vehicle would
be under his (Driver's) control and possession and more knowledge and awareness would be attributed to incharge of vehic le---Mere presence of accused in vehicle neither established
his ownership in respect of vehicle nor he could be held responsible for recovery of contraband from same ---Prosecution failed to establish nexus of accused with such vehicle
and since no nexus of accused with alleged vehicle had been established by prosecution, accused could not be held responsible for recovery of any contraband from such vehicle ---
Receipt of samples after 45 days vanished evidentiary value of Forensic Science Laboratory report ---Otherwise investigating officer failed to tender any plausible explanation for delay
in sending samples for analysis --- High Court set aside conviction and sentence awarded to
accused by Trial Court as same had suffered from misreading and mis -appreciatio n of
evidence and acquitted him of charge ---Appeal was allowed in circumstances.
Khan Bacha v. The State PLD 2006 Kar. 698 and Kashif Amir v. The State PLD 2010
SC 1052 rel.
Rehmatullah Barech for Appellant.
Abdul Mateen, Deputy Attorney General for th e State.
JUDGMENT
ABDULLAH BALOCH, J. ---This judgment disposes of Criminal Appeal No.170 of
2019 filed by the appellant Habib- ur-Rehman son of Shah Muhammad, against the judgment
dated 18th May 2019 (hereinafter referred as, "the impugned judgment") passe d by learned
MCTC/Special Judge CNS/Sessions Judge Killa Abdullah at Chaman, (hereinafter referred
as, "the trial Court"), whereby the appellant was convicted under section 9(c) of Control of
Narcotic Substances Act, 1997 and sentenced to suffer imprisonme nt for life, with fine of
Rs.500,000/ - or in default thereof to further suffer five (05) years' S.I., with the benefit of
section 382- B, Cr.P.C.
2. Facts of the case are that on 2nd October 2018 at about 05.00 p.m., the complainant
Muhammad Ramzan Dafadar Levies lodged FIR No.77 of 2018 at Levies Thana Chaman
under section 9(c) of the CNS Act, 1997, stating therein that on the day of occurrence he along with Ahmed Khan Naib Tehsildar Chaman and other levies officials were on patrolling duty, when pursuant t o spy information with regard to transportation of huge quantity of
narcotics, a Land Cruiser vehicle was found coming from Murda Karez river road, which was signaled to stop, but it did not stop, hence the same was chased and the vehicle entered in a village Landi Karez, where the driver of the said vehicle managed to escape, while a person
present in the said vehicle was taken into custody, who on query disclosed his name as
Habib -ur-Rehman and the search of the vehicle was resulted into recovery of 10- sacks of
Raw Charas, on weighing it became 250- Kgs.
3. On receipt of challan, the trial Court indicated the charge to the appellant and after
denial, the prosecution produced three (03) witnesses. The appellant was examined under
section 342, Cr.P.C. The appellant neither recorded his statement on oath under section 340(2), Cr.P.C. nor produced any witness in his defence. On conclusion of trial, the appellant was convicted and sentenced as mentioned above, whereafter the instant appeal has been
filed.
4. Hear d the learned counsel for parties and perused the available record, which reveals
that in order to substantiate the charge the prosecution has produced the evidence of three witnesses. The comparative study of statements of all witnesses proves that the sa me are
contradictory to each other on material counts. The complainant of the case namely Muhammad Ramzan Dafadar appeared as PW -1, who mostly reiterated the contents of his
fard-e-bayan Ex.P/1- A. However, in his cross -examination he stated that after taki ng into
possession the vehicle, the same was taken to Kacheri and he also submitted fard -ebayan for
registration of FIR in Levies Kacheri PW- 1 further brought on record that the Murasala was
written by Moharar in Levies Thana. However, this witness has de nied the suggestion that all
the recovery proceedings were carried out in Thana. It has been observed that the evidence of this witness is ambiguous on certain counts. On the one hand this witness has brought on record that the Murasala was written by Moha rrar of Thana in Levies Station, hence
presumption can easily be drawn that soon after recovery of the contraband from the vehicle the same was taken to Levies Thana and after lodging the FIR the recovery proceedings were carried out in Levies Station, whi le on the other hand PW -1 has denied the suggestion that
the recovery proceedings were not carried out at Levies Thana. The evidence of PW- 1 has
been contradicted by recovery witness PW -2, who brought on record that the parcels were
sealed in Levies Thana. Meaning thereby that the recovery proceedings were not carried out
at the spot rather all the proceedings were carried out in Levies Stations. Anyhow, non-
sealing of samples soon after its recovery at the spot has created a serious doubt in the case of pr osecution and no implicit reliance could be placed on Chemical Examiner's report,
hence the case of the prosecution is highly doubtful. Reliance, in this regard is placed on the case of Khan Bacha v. The State PLD 2006 Karachi 698. The relevant portion is reproduced
below:
"In the light of what has been discussed above it has not been proved beyond any
shadow of doubt that if the property was sealed at the place of the incident, therefore, there is no guarantee that the property was not tampered with. The subsequent sealing
of the property elsewhere would not rectify the defect already made during course of investigation at the initial stage, hence the chemical analyzer's report has lost its evidentiary value. If the property was subsequently sealed the n the prosecution was
required to explain the circumstances for doing so and to further specifically show that the property was not tampered with or replaced. There is no such explanation furnished by the prosecution in this case, therefore, non- sealing of the sample
immediately after its recovery creates serious doubt in the prosecution case, hence no implicit reliance can be placed on chemical analyzer's report."
5. Minute scrutiny of statements of all the witnesses has further established the fact that
all the witnesses have brought on record that the driver of the vehicle managed his escape
good from the place of occurrence, while the appellant was found sitting in the cleaner seat. The prosecution has also failed to establish the conscious knowledge and awareness of the
appellant with regard to transportation of contraband through the said vehicle and also the prosecution has not established the ownership of the appellant in respect of vehicle. The Incharge of vehicle is always considered to be the Driver of the vehicle and he is held
responsible for recovery of any sort of article from the said vehicle. It has been remained the consistent view of the Hon'ble Superior Courts that when a person is driving the vehicle he is in the charge of the same and, it would be under his control and possession, hence, whatever
articles lying in it would be under his control and possession and more knowledge and awareness would be attributed to the Incharge of the vehicle. Reliance in this regard is placed on the case of Kashif Amir v. The State, PLD 2010 Supreme Court 1052, wherein it was held
as under:
"It is well settled principle that a person who is on driving seat of the vehicle, shall be held responsible for transportation of the narcotics, having knowledge of the same as
no condition or qualification has been made in section 9(b) of CNSA that the possession should be an exclusive one and can be joint one with two or more persons. Further, when a person is driving the vehicle, he is Incharge of the same and it woul d
be under his control and possession, hence, whatever articles lying in it would be under his control and possession. Reference in this behalf may be made to the case of Muhammad Noor v. The State (2010 SCMR 927). Similarly, in the case of Nadir Khan v. S tate (1988 SCMR 1899) this court has observed that knowledge and
awareness would be attributed to the Incharge of the vehicle." [BOLD ADDED]
6. We have analyzed the statements of all the witnesses with care and caution and
observed that none of the witness es have stated that the appellant was driving the vehicle
rather it has come on record that the driver of the vehicle escaped from the place of recovery
knowingly that he had concealed contraband in the said vehicle and there was apprehension
of his arrest , but since the appellant was not within the knowledge of contraband in the
vehicle, thus he made no attempt to escape. The prosecution has also failed to establish the ownership of the appellant in respect of vehicle in question. Mere presence of the appe llant
in the vehicle can neither establish his ownership in respect of vehicle nor he can be held
responsible for recovery of contraband from the same. Hence, the prosecution has failed to
establish the nexus of the appellant with the said vehicle. Since no nexus of the appellant
with the alleged vehicle has been established to the prosecution, thus the appellant cannot be held responsible for recovery of any contraband from the said vehicle.
7. Apart from the above, the FSL report Ex.P/3- D is defective. It appears that the
samples were drawn on the day of occurrence i.e. 2nd October 2018, but the same were received to FSL on 26th November 2018 i.e. after delay of 45- days. Legally, the samples
ought to have been sent for analysis to the Chemical Examiner wit hin 72 hours of the seizure
as required by Rule 4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2001, thus the receipt of samples after delay of 45 -days have vanished the evidentiary
value of the FSL report, when otherwise the Inves tigating Officer has failed to tender any
plausible explanation for delay in sending the samples for analysis and in such like situation
question arises as to whether during the intervening period the samples were in the safe
custody or that the same were altered, changed or manipulated. The delay in dispatching the samples to FSL has lost the evidentiary value of analysis report Ex.P/3- D and no implicit
reliance could be placed upon it.
8. In view of above, the prosecution has miserably failed to establish that the appellant
was the owner or in charge of the vehicle and is responsible for the recovery of contraband
from it. Besides, the recovery proceedings evidently were carried out in a doubtful manner, while the FSL report is defective. Thus, all these l egal and factual aspects of the case have
led us to the conclusion that the prosecution has failed to establish the charge against the appellant through confidence inspiring evidence, but the learned trial Court has failed to consider the same in its true sense. The impugned judgment of trial Court reveals that it is suffering from misreading and mis -appreciation of evidence, warranting interference of this
Court.
For the above reasons, the appeal is accepted. The impugned judgment dated
judgment dated 18t h May 2019 passed by learned MCTC Special Judge CNS/Sessions Judge
Killa Abdullah at Chaman is set aside and the appellant Habib -ur-Rehman son of Shah
Muhammad, is acquitted of the charge under section 9(c) of the CNS Act, 1997. The appellant being in cust ody is ordered to be released forthwith, if not required in any other
case.
Above are the reasons of our short order dated 16th July, 2019.
MH/67/Bal. Appeal allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.